Kipp v. Johnson

• Decision Date: 07 January 1884
• Citation: 17 N.W. 957,31 Minn. 360
• Parties: Sylvester Kipp and another v. Peter J. Johnson
• Court: Minnesota Supreme Court

17 N.W. 957

31 Minn. 360

Sylvester Kipp and another v. Peter J. Johnson

Supreme Court of Minnesota

January 7, 1884

Appeal by plaintiffs from a judgment of the district court for Chisago county, where the action was tried by Crosby, J without a jury.

Judgment reversed, and new trial ordered.

S. & O Kipp, appellants, pro se.

H. N Setzer, for respondent, cited Bower v. O'Donnall, 29 Minn. 135.

OPINION

Mitchell, J.

Action to determine adverse claim to vacant and unoccupied land, brought under Gen. St. 1878, c. 75, § 2. The defendant, in his answer, claimed title under a tax deed executed by the county auditor on the 15th day of July, 1869, purporting to be made pursuant to the provisions of Gen. St. (1866,) c. 11, §§ 137, 156, 157, as of land forfeited to the state at the tax sale of June, 1865. Defendant having introduced this deed in evidence, "the plaintiff offered evidence tending to prove facts that would invalidate the tax deed, to which defendant objected, on the ground that he was precluded therefrom by the statute of limitations, which objection was sustained, and plaintiffs duly excepted." The correctness of this ruling is the principal question raised by this appeal.

The tax law applicable to this case was Gen. St. (1866,) c. 11. Section 154 of that chapter, as amended by Laws 1869, c. 23, reads as follows: "Actions to test the validity of any proceeding under this chapter, or to determine any claim made under or by virtue of any such proceeding, shall be commenced within three years after the sale or forfeiture of land for non-payment of taxes, and not otherwise." This remained in force until repealed in 1874. Laws 1874, c. 1, § 168. This statute had therefore run against this form of action before its repeal, and the defendant invokes the rule that if a cause of action has been barred while the statute is in force and before suit, the repeal of the statute cannot revive it.

But a consideration of the reason of this rule will suggest why it has no application to this statute. The rule and its reason is thus stated by Judge Cooley: "When the period prescribed by statute has once run, so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title of the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title. It is vested as completely and perfectly, and is as safe from legislative interference, as it would have been if it had been perfected in the owner by grant, or by any species of assurance." Cooley, Const. Lim. 365.

This is but another way of saying that a person cannot be deprived of his property by mere legislative enactment. The rule does not mean that a party has a vested right to an immunity from any particular form of action. It is always competent for the legislature to change the remedy. They may give one remedy and deny another, and subsequently restore the latter, and, if it does not impair vested rights of property, no one can object. All that the rule means is that a person cannot, by a repeal of the statute, be divested of his vested rights of property. Where the prescription is the foundation of title to property in possession, the running of the statute vests absolute title in the party in possession. To revive the right of action against him for its recovery after the statute had run, would be, in effect, to divest him of his vested title to the property. This cannot be done.

But what are often indiscriminately called statutes of limitation consist of two distinct classes: First, statutes of limitation, properly so called, where the prescription operates as the foundation of title to property in possession. The lapse of time limited by such statutes not only bars the remedy, but extinguishes the right and vests a perfect title in the adverse holder. Stocker v. Berny, 1 Ld. Raym. 741; Leffingwell v. Warren, 67 U.S. 599, 2 Black 599, 605, 17 L.Ed. 261; Buller, Nisi Prius, 103. The second class are those which merely take away or suspend certain remedies or forms of action, but leave the...